BBE15 v Minister for Immigration - [2016] FCCA 2281

FEDERAL CIRCUIT COURT OF AUSTRALIA

BBE15 v MINISTER FOR IMMIGRATION & ANOR

[2016] FCCA 2281

Catchwords:
MIGRATION – Application for judicial review of a decision of the Refugee Review Tribunal (now known as the Administrative Appeals Tribunal).

Legislation:

Constitution of the Commonwealth of Australia, s.75(v)

Migration Act 1958 (Cth), ss.65, 474, 476

Cases cited:

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)197 ALR 389
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263
NAHI v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCAFC 10
SZAYG v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 90
WAEE v Minister for Immigration and Multicultural and Indigenous Affairs

Applicant:

BBE15

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

ADMINISTRATIVE APPEALS TRIBUNAL

File Number:

BRG 543 of 2015

Judgment of:

Judge Howard

Hearing date:

30 May 2016

Date of Last Submission:

30 May 2016

Delivered at:

Brisbane

Delivered on:

2 September 2016

REPRESENTATION

Solicitors for the Applicant:

Sparke Helmore

Solicitors for the Respondents:

Hodges Legal

ORDERS

That the application be dismissed.
That the applicant pay the first respondent’s costs in an amount to be fixed by the Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 543 of 2015

BBE15

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicant was born in Sri Lanka on (omitted). The applicant’s ethnicity is Tamil.
The applicant arrived in Australia on (omitted). In December 2012 the applicant applied for a Protection (Class XA) Visa under section 65 of the Migration Act 1958 (Cth) (“the Act”).
On 4 September 2013 a delegate of the Minister for Immigration refused to grant a protection visa to the applicant.
On 23 September 2013 the applicant lodged an application seeking a review of the delegate’s decision. The Refugee Review Tribunal made a decision on 13 May 2015 affirming the delegate’s decision not to grant to the applicant a protection visa.
On 17 June 2015 the applicant filed an Application in the Federal Circuit Court of Australia seeking judicial review of the Tribunal’s decision. That Tribunal is now known as the Administrative Appeals Tribunal.

Jurisdiction

In essence, the applicant seeks the issue of constitutional writs.
Section 476(1) of the Migration Act 1958 (“the Act”) provides:-
“476(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.”
Section 75 of the Constitution relevantly provides:-
75. Original jurisdiction of High Court
In all matters:
…
v. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;
the High Court shall have original jurisdiction.”
The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] FCCA 2281
Decision Date: 2 September 2016

CaseChat Overview and Summary

This matter came before Judge Howard of the Federal Circuit Court of Australia. The applicant sought judicial review of a decision made by the Minister for Immigration. The core of the dispute concerned whether the applicant had established a claim based on having a profile of a person suspected of links with the LTTE, either through the supply of groceries or family connections.

The court was required to determine whether the applicant had made a substantial, clearly articulated argument relying upon established facts, as required by precedent. Specifically, the court needed to assess if the applicant's claims regarding his grocery business supplying the LTTE and his family's connections, as well as his detention and assault by police, constituted a valid basis for review. Furthermore, the court had to consider whether the Administrative Appeals Tribunal had adequately dealt with these claims, or if they were subsumed within broader findings.

Judge Howard reasoned that the applicant had not presented a substantial, clearly articulated claim. The applicant's statements about his mother's grocery business and his own detention, when read in conjunction with his admission of celebrating Heroes Day, did not sufficiently establish the necessary link. The court applied the principle that an applicant must present a clear argument based on established facts, and that a Tribunal's decision may be inferred to have overlooked an issue if it fails to expressly deal with it, unless the issue is subsumed in more general findings or the factual premise is rejected. The court noted that the Tribunal's findings were of greater generality and subsumed the applicant's specific claims.

The court found that the Tribunal's decision was a privative clause decision, which is generally final and conclusive. However, the Federal Circuit Court retains jurisdiction to issue constitutional writs if the decision is affected by jurisdictional error. Jurisdictional error, as defined in *Craig v South Australia*, occurs when an administrative tribunal identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material, or makes an erroneous finding or mistaken conclusion that affects its exercise of power, thereby exceeding its authority. In this instance, the court concluded that the applicant had not demonstrated such jurisdictional error.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

What is apparent, therefore, from the decisions in Dranichnikov (supra) and NABE (supra) is that an applicant needs to make a “…substantial, clearly articulated argument relying upon established facts”. I do not consider that the applicant has made a substantial clearly articulated claim that he had a profile of a person suspected of links with the LTTE as a result of the supply and storage of groceries for the LTTE – or on the basis of having family links with any such persons. The claims made by the applicant which are relevant to this question appear at page 55 of the Court Book (exhibit 1 in these proceedings). In the second paragraph of page 55 of the Court Book it was stated:-“From 2005 until 2007 I had a small grocery business that my mother operated from my home. The LTTE would sometimes buy groceries from my mother. They would tell my mother that they would pay her later however they would never pay her.” In addition, the applicant (as noted earlier herein) made the following claim in the second last paragraph on page 55 of the Court Book:-“In 2007, the police and the CID were checking homes and rounding up Tamil males they suspected of being supporters of the LTTE. My family had all gone to church, I had remained at home. The authorities came into my home and saw all of the groceries in my house. They detained me and took me to the police office. In the police office they questioned me about why I was at my home on my own, where the rest of the family was and why there was such a large quantity of groceries. They wanted to know who we were helping by storing these groceries. They interviewed me for four days. During the period of my detainment I was physically assaulted. My mother came to the police office and spoke with the officers. After she spoke with them I was released.” These two quotations from page 55 of the Court Book have to be read in the light of page 118 of the Court Book where it was noted that, at an interview before the delegate – when asked whether his family had been forced to provide help to the LTTE the applicant “did not note that they did, but said that they celebrated Heroes Day”. In any event, even if it could be said that the claim as pressed now on behalf of the applicant was made at an appropriate time and in an appropriate manner (i.e. it was a substantial, clearly articulated argument relying upon established facts) – the Tribunal has dealt with such a claim by making a finding of greater generality which subsumed the claim which is pressed on behalf of the applicant. In WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) FCAFC 184 at 47 French (as His Honour then was), Sackville and Hely JJ stated at paragraph 47:-“[47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected. Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal’s review of the delegates decision, a failure to deal with it in the published reasons may raise a strong inference that it has been overlooked.”

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly provides:-“474. Decisions under Act are final(1) A privative clause decision:(a) is final and conclusive; and(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section:“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).” The relevant decision of the Tribunal in this case was made on 13 May 2015 and is a privative clause decision. However, the Court does still have jurisdiction to issue constitutional writs in relation to the Tribunal’s decision – provided the Court is satisfied that the decision made by the Tribunal is, in fact, affected by jurisdictional error. In the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”[1][1] In these reasons for judgment the emphasis and the underlining has been added.

Ratio Decidendi

Legal Principle Established

Section 476(1) of the Migration Act 1958 (“the Act”) provides:-“476(1) Subject to this section, the Federal Circuit Court has the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution.” Section 75 of the Constitution relevantly provides:-75. Original jurisdiction of High CourtIn all matters:…v. in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;the High Court shall have original jurisdiction.” The jurisdiction of the Federal Circuit Court of Australia to issue constitutional writs is subject to section 474 of the Act. Section 474 of the Act relevantly provides:-“474. Decisions under Act are final(1) A privative clause decision:(a) is final and conclusive; and(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.(2) In this section:“privative clause decision” means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).” The relevant decision of the Tribunal in this case was made on 13 May 2015 and is a privative clause decision. However, the Court does still have jurisdiction to issue constitutional writs in relation to the Tribunal’s decision – provided the Court is satisfied that the decision made by the Tribunal is, in fact, affected by jurisdictional error. In the decision of Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 McHugh, Gummow and Hayne JJ stated at paragraph 82:-“82. It is necessary, however, to understand what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia (1995) 184 CLR 163 if an administrative tribunal (like the Tribunal):-“falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the Tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the Tribunal which reflects it”.“Jurisdictional error” can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.”[1][1] In these reasons for judgment the emphasis and the underlining has been added.